James-Bowen v Commissioner of Police of the Metropolis [2018] UKSC 40; [2018] 1 WLR 4021

The C police officers were involved with the arrest of a suspected terrorist (BA) BA later complained he was subjected to assault and injury by the Cs during the arrest These complaints resulted in the officers being investigated and dismissed, with their identities released to the public and their families subsequently threatened by BA’s supporters BA then brought an action against the Police Commission (D) for vicarious liability, the officers refused to give evidence at trial without measures in place to protect their identities D settled outside of court, apologising for the officers’ actions After the Cs were charged and acquitted for the assault, they began proceedings against the Commissioner believing they were owed a duty of care This alleged duty of care was for their employer/quasi-employer to take reasonable care to safeguard their welfare, which included their economic, professional, and reputational welfare

• In this novel employment situation, did the Commissioner owe the police officers a duty of care to safeguard their welfare, with the inclusion of economic and reputational interests?

Appeal allowed. The Commissioner did not owe them a duty of care in this novel situation. Lord Lloyd-Jones (with whom the other Justices agreed), looked at previous case law to decide whether a duty was owed in the present case: To test whether the law should extend to the novel situation presented, Lord Lloyd-Jones laid down the work of previous judges as considerations: Recognising a duty of care, which was then extended: The law cannot be incrementally extended: In Calveley [1989], injury to reputation of the officers did not constitute as reasonably foreseeable damage which would constitute an action under Donoghue v Stevenson [1932], nor were the Constable vicariously liable for the health damage [25] Policy considerations and legal cohesion Differing interests of the employer and employee Policy considerations in respect of the conduct of litigation Such duty could also render the risk of deterring settlement outside of court, delay to proceedings, and may result in consequential [36-38] Legal professional privilege

An employer defending a claim based on an employee's alleged wrongdoing does not owe the employee the asserted duty to protect their economic and reputational interests through its litigation conduct. James-Bowen rejected that novel duty without denying ordinary employment responsibilities in other contexts.

James-Bowen shows the limits of extending an existing employment relationship into a new protective duty. Employer and employee interests can diverge when admissions, settlement and legal advice are involved. The decision is therefore relevant to coherent development of negligence duties after Robinson. It should not be overstated as denying every duty concerning employee welfare or every claim for psychiatric injury. The specific duty alleged and the context of defending third-party proceedings were decisive.